Freer v Police
[2025] NZHC 321
•27 February 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2025-488-000008 [2025] NZHC 321
BETWEEN SOUL THOMAS FREER
Appellant
AND
NEW ZEALAND POLICE and DEPARTMENT OF CORRECTIONS
Defendant
Hearing: 26 February 2025 Appearances:
K Russell for Appellant (via VMR) A Goodwin for Crown
Judgment:
27 February 2025
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 27 February 2025 at 3:00 pm.
……………………………… Registrar/Deputy Registrar
Solicitors:
Marsden Woods Inskip Smith, Whangārei
FREER v POLICE and DEPARTMENT OF CORRECTIONS [2025] NZHC 321 [27 February 2025]
[1] On 17 December 2024, Judge D J McDonald in the Whangārei District Court sentenced Mr Soul Freer for 16 charges following entering guilty pleas.1 These encompassed several theft, driving-related, resisting police, and drugs/utensil possession charges relating to offending within a six month period.
[2] Mr Freer was also re-sentenced on seven charges for which he had previously been sentenced to 18 months’ intensive supervision. This sentence was cancelled and substituted with a cumulative sentence of two months’ imprisonment.
[3] For all the offending, the Judge sentenced Mr Freer to 27 months’ imprisonment. Mr Freer appeals. He takes no issue with the substitution. But he says that the sentence imposed for the 16 fresh charges was manifestly excessive in that the starting point was too high; the Judge gave insufficient discounts for remorse and rehabilitation; and the overall sentence does not sufficiently take into account totality. Mr Freer also says that the Judge erred in the construction of the end sentence by running all Mr Freer’s theft charges cumulatively.
Approach on appeal
[4] This Court must allow the appeal if it is satisfied that there is an error in the sentence imposed, and that a different sentence should be substituted.2 The overall question on appeal is whether the sentence was manifestly excessive or the sentence is wrong in principle.3
[5] The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. Nor will it artificially tailor a sentence to bring it within the range where home detention is available.4
[6] The focus is on the end result rather than the process by which the sentence was reached.5 In exceptional cases, it may nonetheless be necessary to correct a
1 Police and Department of Corrections v Freer [2024] NZDC 31193.
2 Criminal Procedure Act 2011, s 250(2).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
4 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [35] citing R v Edwards [2006] 3 NZLR 180 (CA) at [24].
5 Tutakangahau v R, above n 3, at [36].
sentence that is within range (for example, where there has been an arithmetical error).6
The offending
[7]The 16 latest charges on which Mr Freer pleaded guilty are as follows:
(a)theft (under $500) (x 4);7
(b) theft ($500–$1000);8
(c)theft (over $1000);9
(d)careless driving;10
(e)driving while disqualified (x 2);11
(f)unlawfully gets into a motor vehicle;12
(g)resisting police (x 2);13
(h)possession of cannabis plant;14
(i)possession of methamphetamine;15
(j)possession of utensils;16 and
6 At [36].
7 Crimes Act 1961, s 223(d); maximum penalty: three months’ imprisonment.
8 Section 223(c); maximum penalty: one year’s imprisonment.
9 Section 223(b); maximum penalty: seven years’ imprisonment.
10 Land Transport Act 1998, s 37(1); maximum penalty: $3000 fine.
11 Section 32(1)(a) and (3); maximum penalty: three months’ imprisonment or $4500 fine.
12 Crimes Act, s 226(2); maximum penalty: two years’ imprisonment.
13 Summary Offences Act 1981, s 23(a); maximum penalty: three months’ imprisonment or $2000 fine.
14 Misuse of Drugs Act 1975, s 7(1)(a); maximum penalty: three months’ imprisonment or $500 fine.
15 Section 7(1)(a); maximum penalty: six months’ imprisonment or $1500 fine.
16 Section 13(1)(a); maximum penalty: one year’s imprisonment or $1500 fine.
(k)breach of intensive supervision.17
[8] I adopt the summary of this offending from Judge McDonald’s sentencing notes:
[9] The facts in relation to your police offending are these, in brief terms. On 19 March 2024, you arrived in a motor vehicle at the Okara Countdown parking lot. You went inside the supermarket. You filled a small trolley with groceries and made your way to a manned checkout, walked straight through and out the sliding doors, loaded the contents into your motor vehicle and drove away.
[10] On 20 October 2023, you were disqualified for a period of one year. At 3.41 pm on 21 May you were on Okara Drive. You entered the premises of Rebel Sport, took a black satchel with you to a shelf, went to the men aisles and took five items of clothing, placed them in the black bag. You exited the store in haste without paying or attempting to pay. Got into the driver’s seat of a white Nissan and drove off. You took $509.96 worth of stock.
[11] On 7 July 2024, you went into the Warehouse. You picked up a Smart speaker and two sets of headphones valued at $292.95 put them in a bag and walked out without paying.
[12] 9 July, you went into Noel Leeming, walked around looking at various items, picked up a portable charger worth $139.99, concealed the charger in your hoodie. Again, you drove off.
[13] On 11 July, you were in Walton Street, you grabbed a shopping trolley and went into Pak’nSave. Picked up some meat, went to the cheese section, picked up some cheese. Total value of $335.85. Entered the self-checkout area, made some attempts to pay for the meat that you picked up but not the other items. Your money card was declined so you just walked out with all your goods without paying for them.
[14] On 23 May, you and two female associates were in Okara Drive. You went into a store, uplifted various items as you moved around, concealed them in either bags or on your person. The two female associates were used to distract store staff and cause a scene in the store so that you could make your way through without paying, and you got away with $1,524.90 worth of property from Rebel Sport. None of this gear has been taken back.
[15] On 16 July 2024, you were standing on a footpath in Puna Rere Drive in Tikipunga. The police came up to you, they told you you were under arrest. They attempted to place you into handcuffs, you pulled your arm out of the grip of the officers and said: “What for?” You turned and ran away from the police running through private property, jumping multiple fences to evade being caught. In relation to that charge, you were only charged with resisting police rather than escaping.
[16] The final set of charges I need to speak about are those that occurred on 23 July 2024 when you were in Onerahi Road. The victim, Mr Boustead
17 Sentencing Act 2002, s 70A(a); maximum penalty: six months’ imprisonment or $1500 fine.
was the owner of a Nissan Skyline motor vehicle. He did not know you. He had bought it for $4,100. The victim met you and during the early hours of Tuesday morning in Kensington he agreed to help you with vehicle parts and allowed you and your partner to get into the Nissan. He drove you to his home address to look for the parts.
[17] You then asked him to drive around Whangārei to other parts, in particular to a dairy. You were driving, he asked you to get out of the driver’s seat, you refused to do so. The police arrived. You refused to get out of the motor vehicle. They had to drag you out. You were arrested. When they searched you, they found in your black satchel 1.21 grams of methamphetamine, 5.25 grams of cannabis plant, two glass pipes for smoking methamphetamine.
District Court decision
[9] The Judge imposed an end sentence of 27 months’ imprisonment, constructed as follows:
(a)A starting point of 12 months’ imprisonment for the lead charge of theft over $1000, with uplifts totalling eight months for the remaining theft charges, amounting to a total of 20 months’ imprisonment for all theft charges;18
(b)An uplift of nine months for all remaining charges (other than careless driving), leading to a total starting point of 29 months’ imprisonment.19
(c)A discount of 15 per cent for guilty plea.
(d)A discount of 10 per cent for causative link between addiction issues and matters in the cultural report, and the offending.
(e)An uplift of four months for previous convictions.
(f)Two months’ imprisonment for the re-sentencing.
18 Police and Department of Corrections v Freer, above n 1, at [23]. I note the District Court decision provides a starting point of 17 months prior to uplift for the non-theft charges. However, counsel suggest, and I accept, that this was an error of arithmetic and was indeed 20 months.
19 The Judge explained that if Mr Freer pleaded guilty to the breach of supervision charge, this would be an additional month uplift. The final starting point was 29 months for all offending.
[10] For the individual charges, the sentence of 27 months was apportioned as follows:
(a)Intensive supervision cancelled and replaced with two months’ imprisonment.
(b)Theft over $1000: 12 months (cumulative on the review of intensive supervision sentence).
(c)Theft $500–$1000: four months (cumulative).
(d)Theft under $500 (Countdown): two months (cumulative).
(e)Driving while disqualified: two months (concurrent) and disqualified from driving for six months.
(f)Theft under $500 (The Warehouse): two months (cumulative).
(g)Theft under $500 (Noel Leeming): two months (concurrent).
(h)Theft under $500 (Pak’n’Save): two months (cumulative).
(i)Resisting police: two months (concurrent).
(j)Unlawfully getting into a motor vehicle: five months (cumulative).
(k)Driving while disqualified: two months (concurrent).
(l)Possession of utensil: two months (concurrent).
(m)Possession of methamphetamine: two months (concurrent).
(n)Resisting police: two months (concurrent).
(o)Possession of cannabis: two months (concurrent).
Mr Freer’s submissions on appeal
[11] Ms Russell, for Mr Freer, submits the starting point for the lead charge, being the theft over $1000 charge, was too high, given the starting points adopted in similar cases. She submits a starting point of around six months would have been more appropriate, in light of the eight months starting point adopted in Henry v Police,20 and the six-month starting point adopted in Samuels v Police.21
[12] Ms Russell submits, again in light of Henry and Samuels, the remaining theft charges should have attracted an uplift of four months in total, bringing the adjusted starting point to 10 months. With the nine months uplift for other offending (with which no issue is taken) this would bring global starting point for all offending should to 19 months’ imprisonment. Ms Russell submits that this would be more consistent with relevant caselaw and more appropriate in reflecting all the relevant charges and the principle of totality.
[13] Turning to discounts for personal factors, Ms Russell submits the Judge erred in failing to grant a 10–15 per cent discount for Mr Freer’s remorse and his rehabilitation efforts and prospects.
[14] As to the final apportionment of the end sentence between charges, Ms Russell submits the Judge failed to consider totality when determining that Mr Freer’s sentences on the theft charges should run cumulatively rather than concurrently because concurrent sentences are appropriate where the offending is of a similar nature and is connected.22 Ms Russell submits that the Judge should have taken an approach similar to that in Manuel-Te Aho v Police,23 in which charges arising from offending that occurred over a period of time, but formed part of a “spree,” were sentenced concurrently on the lead offence, given the similar and connected nature of the offending.
20 Henry v Police [2016] NZHC 800.
21 Samuels v Police [2019] NZHC 694.
22 Sentencing Act, s 84.
23 Manuel-Te Aho v Police [2023] NZHC 1056.
[15] For all these reasons, Ms Russell submits the end sentence imposed by the Judge was manifestly excessive and the appeal should be allowed.
Decision
Starting point
[16] There is no tariff case for theft because of the broad range of circumstances that may apply. In this case, the lead theft charge of theft over $1000 involved Mr Freer working his way around a Rebel Sport store, placing items without their packaging into a sports bag he had also taken off a shelf, then using two female associates with him in the store to try to distract staff.
[17] While the Samuels case relied upon by Ms Russell involved an item of similar value to the goods taken by Mr Freer (in that case, one iPhone), the offending in Samuels was more opportunistic (taking a phone from a bag at a bar), and lacked the added dimension of pre-meditation and subterfuge in this case.
[18] In Mareraki v R,24 the District Court applied a starting point of 18 months for a lead offence was where items to a value of $1,319 were taken from a Farmers store, concealed in reusable bags. Harland J commented that a starting point of 14 months for the lead offence would have been more appropriate, but she did not interfere with the overall starting point. That is because she considered to be generous an uplift of 18 months for offending that took place over 13 months and led to 21 theft charge. I consider the lead offending here to be more similar to Mareraki. The Police also referred me to Ralph v R,25 and Colman v Police,26 which involved extended series of shoplifting and other offending where respective starting points of 15 months’ and 14 months’ imprisonment for the lead offence were upheld on appeal.
[19] A broad range of starting points are adopted for shoplifting cases. In my view, the starting point of 12 months for the lead offence in the present case was well within range.
24 Mareraki v R [2023] NZHC 3096.
25 Ralph v R [2021] NZHC 1434.
26 Colman v Police [2014] NZHC 3215.
[20] Mr Freer says the uplift of eight months for the remaining five theft charges was excessive and did not reflect totality. He says four months was appropriate. The remaining offences were against a range of different victims across Whangārei with a total value of $3,536. The balance of the theft offences were committed in close proximity to each other. They formed part of an ongoing pattern of disregard of the law and orders from the Police and the Court. I do not consider the uplift was excessive.
[21] There is no issue taken with the uplift of nine months for the remaining charges. In my view, the overall starting point of 29 months appropriately reflects the overall criminality of the offending.
Discounts for remorse and rehabilitation
[22] I have considered Mr Freer’s letter expressing remorse. I note Mr Freer’s participation in some rehabilitation available while on remand. I also accept that his investigation of the Grace Foundation as a prospective address for home detention is positive.
[23] However, I do not consider the Judge was in error in rejecting discounts for remorse or rehabilitation. As the Judge said, Mr Freer’s ostensible willingness to rehabilitate is undermined by his six misconduct reports while remanded in custody. Mr Freer’s recent history of failing to engage in rehabilitation when he was under a sentence of intensive supervision also somewhat undermines whether Mr Freer is genuine in the steps he has taken on remand.
[24] A remorse discount requires the defendant to satisfy the court that they are genuinely remorseful — it is insufficient to simply say that they are remorseful.27 An assessment of remorse is evaluative. While I acknowledge the letter Mr Freer submitted in this case, I take the Judge as not accepting genuine feeling behind the sentiments in the letter. That was open to the Judge. In all the surrounding circumstances, I have formed the same view.
27 Waitohi v R [2023] NZHC 3660.
[25] Mr Freer said that a discount of 10-15 per cent would have been appropriate for his remorse, efforts at rehabilitation, and future prospects of rehabilitation. In the cases to which he referred, the Court formed the view that there was strong evidence of the appellant’s remorse and efforts at rehabilitation.28 Indeed in Glassie v R the Court considered that the defendant could “could scarcely have done more” to demonstrate rehabilitation efforts and potential.29 The present case is not of this character.
Totality/cumulative versus concurrent
[26] Cumulative sentences are generally appropriate if the offences are different in kind, whether or not they are a connected series of offences.30 This is to be compared to concurrent sentences, which are generally appropriate if the offences are of a similar kind and are a connected series of offences.31 The specific provisions as to concurrent and cumulative sentences do not override the principle of totality embodied in s 85 of the Sentencing Act 2002.
[27] Ms Russell submits that in the Judge’s final apportionment of the charges, the Judge was wrong to run the theft charges cumulatively rather than concurrently. I have rejected Mr Freer’s appeal against the Judge’s conclusions on the starting point and discounts. That is, the overall end sentence meets the objectives of totality. Given that position, Ms Russell accepted that the alternative approach she said the Judge should have taken to apportionment of that end sentence (viz, sentencing the remaining theft charges concurrently on the lead theft offence by an uplift) would lead to the same result but differently structured.
[28] Accordingly, while it may not have been appropriate for the Judge to take a cumulative approach to the theft charges, I have not found error in the end sentence of 27 months, as opposed to how the Judge chose to apportion this. The issue raised is academic. I took Ms Russell to concede that point.
28 Wawatai v Police [2015] NZHC 406.
29 Glassie v R [2022] NZCA 556.
30 Sentencing Act, s 84(1).
31 Sentencing Act, s 84(2).
[29] Finally, the Police drew my attention to the absence of any uplift imposed for Mr Freer’s offending while on intensive supervision. I agree that this was an aggravating factor capable of attracting a further uplift from the starting point. This goes into the mix in my conclusion that the end sentence was not manifestly excessive.
Result
[30]I dismiss the appeal.
Anderson J
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